This blog has followed, through several cases, litigation testing the constitutionality of laws requiring DNA samples from people who have been arrested for, or charged with, felonies, links 1, and 2, or misdemeanors, link 3. Several federal circuits and state high courts have ruled on this issue, but the Supreme Court has not. Chief Justice Roberts just issued a temporary stay in one such case, a stay that may end up giving some clues to the future of the issue.

On March 19, 2012, the Supreme Court passed on one chance to decide the question, when it denied certiorari in United States v Mitchell. In that case, the en banc Third Circuit, by an eight to six vote, had held the requirement to be a constitutional search, reversing the district court. (Unusually, the Third Circuit voted to hear this case en banc after a three-judge panel had heard oral argument but before it had decided the appeal.)

A few weeks later, on April 24, 2012, the Maryland Court of Appeals, the highest court in Maryland, ruled the other way in King v. State, concluding, by a five to two vote, that although it had earlier held that Maryland could constitutionally require DNA samples from those convicted of certain crimes, extending those requirements to this defendant violated the Fourth Amendment. (The Court left open the possibility that in some cases, a DNA might be a constitutional method of identifying an arrestee, but that was not an issue in King’s case.)

In early May Lyle Denniston, in SCOTUS blog, posted a nice summary of the King decision and the issues it raises, here. The King opinion nicely reviews the positions taken by earlier courts, some upholding such statutes, some striking them down. By my count, two federal circuits have clearly upheld such laws (in both cases by split votes), district courts have split with two in favor and two opposed, three states’ courts have held them unconstitutional (the highest court in Maryland, intermediate appellate courts in Minnesota and California, though one decision was vacated) and two state courts have approved it (the Virginia Supreme Court* and – sort of, kind of, in a complicated juvenile setting – the Arizona Supreme Court*). Most courts upholding this mandatory collection have looked at the “totality of the circumstances” to conclude that the search or seizure involved is “reasonable” under the Fourth Amendment and hence constitutional.

Last Friday morning, July 20, Denniston reported, here, that on the previous Wednesday, July 18, Chief Justice Roberts had ordered the Maryland court’s order temporarily stayed. The State had earlier sought such a stay fro the Maryland Court of Appeal, which it denied on May 18. The temporary stay was to last until the defendant had a chance to file papers concerning the stay, not later than July 25, and then until the Chief Justice or the Court considered both sides’ arguments. The defendant filed an opposition to the stay on Friday afternoon. (This Denniston post contains links to the texts of both the State’s application for a stay and the Defendant’s opposition to it.)

Both Chief Justice Robert’s initial stay, pending briefing from the defendant, and his, of the Court’s eventual action on the stay application, are – and will be – interesting, both in themselves and for what they may say about whether the Court will take the case.

The Merits of the Stay Application

Applications for a stay come to a single justice, who can grant them, deny them, or refer them to the whole Court. To get the Supreme Court (or one of its justices) to grant a stay in a case that it has not yet made a decision to hear requires showing that a reasonable probability that the Court will grant review, a fair possibility the Court will reverse the lower court decision, immediate and irreparable damage to the party applying for the stay, and a balance of equities favoring the stay.

I think the stay application makes a pretty strong case that there is a reasonable chance the Court will grant cert here. This is the first case that creates a clear split in authority on an issue the Court seems destined to have to decide. King argues that the Maryland case is different from the other cases, in part because Maryland’s statute is scheduled to expire at the end of 2013, though the Court would seem likely to decide this case, if they take it, by the summer of 2013 if not earlier.

With so many courts going in different ways, it seems to me that impossible to say there is not a “fair possibility” that the Court will not reverse. Of course, I think there is also a “fair possibility” it would affirm. If the requirement were “likely to succeed on the merits,” as it is in some contexts (like preliminary injunctions), then I think the State would have a harder case.

The problem, for me, is in the last two requirements. I’m not sure what the irreparable injury is to the State that it might not be able to take DNA from arrestees until (as it expects) the Supreme Court reverses the Maryland court. Presumably it would then be able to get DNA from the people it had arrested, at least those against whom charges were still pending. (It is entitled to get the DNA from those it has convicted.) It seems to me that would only be the ones whom it has not charged, or who are acquitted, who might escape having their DNA taken, but they would be entitled to have their DNA records expunged. Having to wait a year (realistically, less) to investigate whether a given arrestee is a “cold hit” for another case would be annoying, but is it irreparable injury? And, if so, does that provide a “balance of the equities” toward the State when, if the Court upheld the Maryland court’s decision, a stay would mean DNA collection, and cross-checking for other crimes, for all Maryland arrestees?

The defendant makes another argument I have trouble assessing. It points out that the State knew on May 18 that the Maryland Court of Appeals denied its stay, but that it did not file its application to the U. S. Supreme Court for a stay until July 13, eight weeks later. That this seems inconsistent with the State’s claims of irreparable injury seems a nice “gotcha” point; I don’t know that I would count it very heavily.

I am certainly no expert on the Supreme Court’s “stay pending decision on certiorari” jurisprudence, but I think the State’s application is not overwhelming. I’d probably vote against the stay (if anyone were to appoint me), but I can see it going the other way.

The Meaning of Actions on the Stay Application

That Chief Justice Roberts thought this was worth even a temporary stay, pending further briefing, is interesting – it shows that he, at least, did not think the State’s arguments were terrible. It will be more interesting to see what he or the whole Court does now.

A grant of the stay pending a decision on cert would be a strong indication that the Court is likely to grant cert. If Justice Roberts thinks the State has a good chance of getting review of this decision, it is hard to imagine that he would not find at three other justices who agreed that the issue was worth deciding. Of course, the filings of the parties (and possibly amici) for and against cert could reveal reasons why the Maryland case is not a good vehicle to determine this issue, but, at least on its face, a stay would be a strong predictor of cert.

Denial of the stay is not so clear. The stay could be easily be denied for the absence of irreparable injury without making it one whit less likely that the Court would take the underlying case. It would be the absence of a positive marker for cert, but not, I think, in itself a substantial negative one.

I suspect there will be an answer on the stay application in the coming week, from chief Justice Roberts or the Court as a whole. There may or may not be any opinion explaining the decision (most likely not, I suspect, but one never knows.) If and when the Court takes up this issue, I (strongly) suspect this blog will have something to say about the merits of the claim.

But first, the Court will have to decide to decide. And we will be poking through the Court’s tea leaves (in the “abandoned property” of garbage?) to try to guess whether it will act. So watch this space!

Hank Greely

* Thanks to David Kaye, of Penn State Law school, for correcting me on two points. The Virginia case was decided by the highest Virginia Supreme Court (I got the name wrong, which is particularly bad because there is an intermediate Virginia Court of Appeal) and, in late June, the Arizona Supreme Court made its own complicated decision, similar but not identical, to the appellate court’s. Kaye, who I consider the leading legal scholar on forensic DNA generally, has a blog on forensic evidence with posts on both the Arizona case, here, and on the King case itself, here..